While in the Office, despite staff recommendations against termination, Kozinski overruled his staff and then repeatedly tutored Interior Secretary James Watt's legal staff in how to rewrite the proposed termination of a mining safety whistleblower, James Spadaro, so as to pass legal muster. When the incident came to light years later during confirmation hearings for Kozinski’s Ninth Circuit Court of Appeals nomination, the scandal drew 43 Senate opposition votes and reportedly subsequently prevented Kozinski’s planned upgrade to the Supreme Court.[4]

During his tenure as a court of appeals judge, he has become a prominent feeder judge. Between 2009-13, he placed nine of his clerks on the United States Supreme Court, the fifth most of any judge during that time period.[6] He has been particularly successful placing his clerks with Justice Anthony Kennedy, for whom he had himself clerked.[7]

In the 2000s, while defending the 9th Circuit against criticism because of a recent controversial decision, Elk Grove Unified School District v. Newdow, Kozinski (who had not been part of the case) emphasized judicial independence: "It seems to me that this is what makes this country truly great—that we can have a judiciary where the person who appoints you doesn't own you."[8] He also took a stand against the charge that the Ninth Circuit is overly liberal: "I can say with some confidence that cries that the Ninth Circuit is so liberal are just simply misplaced."[9] On November 30, 2007, Kozinski became the tenth chief judge of the Ninth Circuit.[10] His term as chief judge ended on December 1, 2014, at which time he was succeeded by Judge Sidney Runyan Thomas.[11]

In 2008, The Los Angeles Times revealed Kozinski "maintained a publicly accessible website featuring sexually explicit photos and videos."[12] Kozinski had collected a "vast" number of images sent to him via e-mail over many years and retained them on a personal web server in his home. Only a "small fraction" of the images were offensive. Kozinski believed that only invited friends and family were able to view the image directory.[13] Nonetheless, he called for an ethics investigation of himself.[14] In July 2009, a panel headed by Judge Anthony Scirica wrote that Kozinski should have administered his web server more carefully, but Kozinski's apology and deletion of the web site "properly conclude" the matter.[15][16]

Thomas Martin Thompson had been convicted based largely on the testimony of his fellow inmates, and doubts about the effectiveness of his defense counsel led seven former California prosecutors to file briefs on Thompson's behalf. The Ninth Circuit originally denied Thompson's habeas petition attacking the state court decision. Two days before Thompson's scheduled execution, the Ninth Circuit en banc reversed (7–4) the earlier denial.

If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself. ... That this is a capital case does not change the calculus. The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process.

Kozinski's opinion was criticized by Judge Steven Reinhardt, who called it "bizarre and horrifying" and "unworthy of any jurist."[17] The en banc decision was reversed by the Supreme Court, which called the Ninth Circuit's action "a grave abuse of discretion."[18]

It has been suggested that this section be split out into another article. (Discuss) (January 2015)

Kozinski dissented from an order rejecting the suggestion for rehearing en banc an appeal filed by Vanna White against Samsung for depicting a robot on a Wheel of Fortune set, in a humorous advertisement. While the Ninth Circuit held in favor of White, Kozinski dissented, stating that "All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy."[19]

An extended extract from the opinion is widely quoted: "Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture".[20]

Kozinski's dissent in White is also famous for his sarcastic remark that "for better or worse, we are the Court of Appeals for the Hollywood Circuit."

Yet another of Kozinski's high-profile cases was the lawsuit filed by Mattel against MCA Records, the record label of Danish pop-dance group Aqua, for "turning Barbie into a sex object" in their song "Barbie Girl." Kozinski opened the case with "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong" and famously concluded his opinion with the words: "The parties are advised to chill."[21]

The majority found the due process rights of a man accused of smuggling illegal immigrants across the border were not violated despite the fact that witnesses who could have exonerated him were deported before they could be deposed. Kozinski dissented. Federal prosecutors, however, dropped all charges and released the defendant.[22][23] In 2012, after prosecutors used similar tactics in another case, United States v. Leal-Del Carmen, Kozinski's position in Ramirez-Lopez became the law in the Ninth Circuit.[24][25]

Kozinski was assigned an obscenity case in which Ira Isaacs was accused of distributing videos depicting bestiality and other images, similar to the 1973 Miller v. California case.[26][27] During the trial, on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com. The Times reported that Kozinski's site included a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, images of masturbation and public and contortionist sex, a slide show striptease featuring a transsexual, a series of photos of women's crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. Kozinski agreed that some of the material was inappropriate, but defended other content as "funny."[28]

Calling the coverage a "baseless smear" by a disgruntled litigant, Stanford University law professor Lawrence Lessig pointed out that the Times had unfairly taken the videos and pictures out of context in its descriptions. He wrote that one frequently mentioned video—the video described above as a "half-dressed man cavorting with a sexually aroused farm animal," which actually involves a man running away from a donkey—is available on YouTube,[29] and is not, as is implied by the Times article, an example of bestiality. He also argued that the Kozinski family's right to privacy was violated when the disgruntled litigant exposed the private files which were not intended for public viewing. Lessig compared this to breaking and entering a private residence.[30]

Kozinski initially refused to comment on disqualifying himself,[31] then granted a 48-hour stay after the prosecutor requested time to explore "a potential conflict of interest."[28] On June 13, Kozinski petitioned an ethics panel to investigate his own conduct. He asked Chief Justice John Roberts to assign the inquiry to a panel of judges outside the 9th Circuit's jurisdiction. Also, he said that his son, Yale, and his family or friends may have been responsible for posting some of the material.[32][33]

Kozinski had previously been involved in a dispute over government monitoring of federal court employees' computers. Administrative Office head Ralph Mecham dropped the monitoring program, but protested in the press.[34] On June 15, 2008, it was reported that Kozinski had recused himself from the case.[35] On June 5, 2009, the Judicial Council of the Third Circuit issued an opinion clearing Kozinski of any wrongdoing.[36][37]

In February 2013, Kozinski wrote an opinion reversing a district court ruling denying Japanese whalers Institute of Cetacean Research a preliminary injunction against the US-based anti-whaling group Sea Shepherd Conservation Society. Kozinski found that the militant conservationist group were "pirates", reversed the denial of injunction by the district court, and affirmed its own provisional injunction against Sea Shepherd. The injunction bars Sea Shepherd from approaching within 500 yards of ICS vessels.[38][39] Sea Shepherd founder Paul Watson dismissed the opinion as "entirely devoid of real evidence" and claimed that Sea Shepherd USA was in full compliance with the injunction.[40]

In July 2014, Joseph Rudolph Wood, who had been sentenced to death, filed a motion before the 9th Circuit Court of Appeals claiming a right to know which chemicals were included in the lethal injection that was to be used to execute him. While the court denied his motion, Kozinski issued a dissenting opinion, calling the use of drugs a "misguided effort to mask the brutality of executions by making them look serene and peaceful." He went on to argue that states should revert to more primitive methods like the guillotine, electric chair, gas chamber, and firing squads because they are accurate and do not mask the brutality. He wrote, "Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all."[41][42][43][44][45][46][47][48] Wood's execution would subsequently take 1 hour 57 minutes before he was pronounced dead.[47]

^United States v. Carmen, no. 11-50094 (9th Cir. Sept. 14, 2012) ("We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today."). Retrieved March 19, 2014.